Indian casino case challenges tribe’s access to protected land

WASHINGTON — A Washington state tribe’s controversial bid to build a big casino comes to court this week, in a case that’s being closely watched on and off reservations nationwide.

For the Cowlitz Indian Tribe, the casino proposed near La Center, Wash., is a potential economic savior. For opponents, including officials in Clark County and the nearby city of Vancouver, the proposed 152-acre gambling facility and resort is a looming burden. And for the Obama administration, as well as other tribes, the Cowlitz proposal may prove a test case whose final resolution could reach far and wide.

“We’re monitoring it,” Richard A. Guest, senior staff attorney with the Native American Rights Fund, said in an interview Tuesday. “With Indian cases, unfortunately, the decisions have impacts that can go beyond that particular tribe.”

The case rescheduled for a status hearing Thursday morning before a U.S. District Court judge in Washington, D.C., challenges the Interior Department’s 2011 decision to accept land near La Center for the proposed Cowlitz casino. Similar to two other pending Indian casino proposals in California’s Central Valley, among others, the Interior Department would take the off-reservation land into trust for the tribe.

And, similar to the California projects proposed in Madera and Yuba counties, the proposed Cowlitz casino has generated opposition from some — though not all — local authorities, as well as from existing gambling operations. Lawsuits dog all three projects. Underscoring the high stakes, the United South and Eastern Tribes, an organization representing 26 tribes from Texas to Florida, filed a friend-of-the-court brief supporting the Cowlitz position.

From the other side, opponents raise alarms in legal filings about increased “crime, noise and light pollution,” as well as lowered property values and damaged waterways, among other problems.

The Cowlitz lawsuit is already 2 years old, and it won’t end at this week’s hearing. In time, Guest suggested, it even “has the potential” to eventually reach the Supreme Court. The casino proposal itself, now entering its second decade, envisions 3,000 slot machines, 155 gaming and poker tables, a 250-room hotel and more.

“If the (opponents) prevail, the tribe will remain landless, without any federally protected land base, without the ability to qualify for many reservation-based federal programs, and without any prospects for economic development and a stable revenue stream that other federally recognized tribes have,” attorney Robert D. Luskin wrote in a brief for the tribe.

But the Cowlitz casino case may not be limited to its local Pacific Northwest impacts. It is also obliging a federal judge to weigh Obama administration actions against a somewhat opaque 1934 law and a 2009 Supreme Court decision.

The 1934 law, called the Indian Reorganization Act, authorized the Interior Department to take land into trust for “any recognized tribe now under federal jurisdiction.”

This has become important as more tribes seek off-reservation land for casino construction. The Supreme Court, in the 2009 case involving a Rhode Island tribe, concluded that the legislative language meant a tribe had to have been under federal jurisdiction in 1934 for it to have off-reservation land taken into trust.

The approximately 3,700 members of the Cowlitz Indian Tribe only received formal federal recognition in 2000.

“The Cowlitz Tribe was neither federally recognized nor under federal jurisdiction in June 1934,” Clark County’s initial legal brief declared, adding that the Interior Department therefore “has no authority to acquire land in trust for the tribe (and) no authority to proclaim such land the tribe’s reservation.”

The Obama administration, though, insists that the Cowlitz Tribe was recognized “in the cognitive or quasi-anthropological sense of that term in 1934,” even if the tribe was not on an official list at the time. Lawyers now argue, in part, over what it means to be “recognized” and “under federal jurisdiction.”

This year, following previous failed efforts, two bills in the House of Representatives have again been introduced to reaffirm the Interior Department’s ability to take Indian land into trust even for tribes recognized after 1934. From the other side, 17 attorneys general from states, including Texas, Florida and South Carolina, are on record as urging caution before changing the 1934 law.